Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF167380 Eric G. Helgesen. (Retired judge of the superior court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J. and Hill, J.
Defendant was charged with seven counts of corporal injury to a child (Pen. Code, § 273d, subd. (a)), with special allegations that defendant personally inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)). On the date set for his preliminary hearing, defendant pled no contest to five counts, along with the special allegations. The remaining counts were dismissed.
All further statutory references are to the Penal Code, unless otherwise indicated.
Defendant contends there was no factual basis for a plea of no contest to five counts of corporal injury to a child, because the facts before the trial court indicated defendant inflicted injuries on the child on only two occasions. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The maternal grandmother brought defendant’s one-month-old baby to the emergency room, complaining he was vomiting, constipated, and his hands were twitching. He also had a bruise on his cheek, resembling a bite mark. He was found to have a skull fracture, fractures of the sixth and seventh ribs, as well as older fractures of the 10th, 11th and 12th ribs, and a fractured femur. An MRI of the baby’s brain revealed abnormalities consistent with shaken baby syndrome. The doctor concluded the fractures were consistent with non-accidental trauma, the MRI results were consistent with shaken baby syndrome, and the seizures were related to either the brain injury or diluting formula, but were more likely caused by water intoxication or diluting the baby’s formula.
Hospital personnel reported the baby’s condition to child protective services as a possible case of child abuse. When interviewed by police, the family initially could not explain the source of the injuries, except to suggest that the bruise on the baby’s cheek could have been the result of being bitten by the baby’s 3-year-old cousin, who lived in the same household with the baby and his family until a few days before he was taken to the emergency room. Defendant denied diluting the baby’s formula.
Defendant subsequently spoke with police again, and admitted holding the baby around the ribs and shaking him hard on two separate occasions because the baby was crying. Defendant and the baby’s mother each admitted accidentally dropping the baby once.
Defendant was charged with seven counts of corporal injury to a child. All the counts allegedly occurred between May 1 and May 30, 2006. Count one alleged a skull fracture, count two a broken femur, count three shaken baby, count four shaken baby, count five head injury, count six broken ribs, and count seven broken ribs. Pursuant to a plea agreement, defendant pled no contest to five counts. In taking the plea, the court stated: “I know these are all similar in nature with the same dates. Do you understand that each of these five are reflected to be five separate instances?” Defendant answered “yes.” Counsel then stipulated that “the court file” could be used as a basis for the plea, and the court made a finding that the plea was knowing and voluntary, and there was “a factual basis from the court file.”
Defendant was sentenced to the midterm of four years on count one, with a consecutive term of four years for the section 12022.7, subdivision (d), enhancement. The same sentence was imposed on count two and its special allegation, to run concurrent with the term on count one. On each of the three other counts, defendant was sentenced to a four-year concurrent term.
DISCUSSION
When a defendant pleads guilty or no contest to felony charges, the court “shall … cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.” (§ 1192.5.) The court may make that inquiry of the defendant himself or of defense counsel. (People v. Holmes (2004) 32 Cal.4th 432, 436 (Holmes).)
“If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge [citation], or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. [Citation.] If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.]” (Holmes, supra, 32 Cal.4th at p. 442.)
“Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate.” (Holmes, supra, 32 Cal.4th at p. 436.)
Inquiry may be made of defense counsel because, “[w]hile defendant may not be in a position to recognize whether his acts do or do not ‘“constitute the offense with which he is charged,”’ [citation], defense counsel is well suited to make such a determination.” (Holmes, 32 Cal.4th at p. 440, fn. 5.) If defense counsel stipulates to a factual basis for the plea, “there must be some reference to a factual source to support the essential elements of the crime.” (People v. Willard (2007) 154 Cal.App.4th 1329, 1334.)
“[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citations.]” (Holmes, supra, 32 Cal.4th at p. 443.)
The People contend defendant’s response to the court’s inquiry about “five separate instances,” combined with defense counsel’s stipulation, adequately established the factual basis for defendant’s plea. Whether defendant’s conduct amounted to five violations of the statute, however, appears to be a legal question defendant was not qualified to answer. Defendant was not asked about his conduct that led to the charges, nor was he asked to confirm any factual statement found in any document that set out facts demonstrating that five violations of the statute occurred. Thus, defendant’s response did not establish a factual basis for his plea.
Defense counsel stipulated that “the court file,” rather than any particular document, established the basis for defendant’s plea. We doubt whether such a vague, general reference is sufficient to satisfy the requirements of section 1192.5 and Holmes. It is little more than a bare stipulation that a factual basis exists, and requires that the entire court file be reviewed in the search for the necessary facts.
In any event, the record does not demonstrate that the court file contained facts establishing five violations of the statute. Section 273d, subdivision (a), provides that, “[a]ny person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony.” “[T]raumatic condition” as that term is used in section 273d, “has been defined as a wound or other abnormal bodily condition resulting from the application of some external force.” (People v. Stewart (1961) 188 Cal.App.2d 88, 91.)
In People v. Johnson (2007) 150 Cal.App.4th 1467 (Johnson), the court interpreted section 273.5, subdivision (a), a statute which is similar to section 273d, subdivision (a), in that it prohibits willfully inflicting on a spouse or cohabitant “corporal injury resulting in a traumatic condition.” (§ 273.5 subd. (a).) In Johnson, defendant contended he could not be convicted of three counts of violation of section 273.5 for injuries inflicted during a single continuous assault. The court rejected that argument and concluded:
“The section is violated only if corporal injury results from the ‘direct application of force on the victim by the defendant.’ [Citation.] The statute proscribes a ‘very particularized battery.’ [Citation.] The essence of any battery is the touching of the victim. [Citation.] In section 273.5, the touching must result in bodily injury. Thus, evidence of one punch to the face resulting in a black eye would constitute a completed violation of section 273.5. We conclude, therefore, that the crime described by section 273.5 is complete upon the willful and direct application of physical force upon the victim, resulting in a wound or injury. It follows that where multiple applications of physical force result in separate injuries, the perpetrator has completed multiple violations of section 273.5.” (Johnson, supra, 150 Cal.App.4th at p. 1477.)
The court file supports only two violations of section 273d by defendant, resulting in multiple injuries. Defendant admitted shaking the baby on two occasions while holding him around the ribs. He also admitted dropping the baby accidentally, as he was putting the baby down on the bouncer he slept in. Since the statute requires a willfully inflicted injury, an accidental dropping would not constitute a violation of the statute. There is nothing in the court file to indicate there was any willful, direct application of force on the baby by defendant, other than on the two occasions he admittedly held the baby around the ribs and shook him. The medical reports do not indicate the injuries were inflicted on more than two occasions. There is nothing in the court file to indicate that any of the injuries were inflicted by defendant at any time other than the two occasions when he shook the baby, and possibly the one occasion when he accidentally dropped the baby.
The trial court abused its discretion in finding there was a factual basis for defendant’s no contest plea to five counts of corporal injury to a child; the court did not make a proper inquiry of defendant to determine the facts and it made its finding based on a “court file” that did not support a finding of more than two violations of the statute.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court to permit the prosecution to establish a factual basis for defendant’s plea. If the prosecution does so, the trial court shall reenter the judgment. If not, the court shall allow defendant the opportunity to withdraw his plea.